As I have described in the previous chapter, in some countries (U.S.A., Japan, Canada) mediation is already common practice in the environmental arena. In other countries it is still something of an exception but is being increasingly used.
To my knowledge, mediation in the field of environmental policy was a "social invention". It was not incorporated into the arsenal of environmental policy instru-ments as a compulsory or optional standard procedure but owes its existence to the initiative of some social groups. In the meantime (particularly in Japan and the U.S.A.) mediation has also become a formal governmental instrument and has to varying de-grees been standardised. In individual cases the law requires that it be used before re-course is made to other procedures for dispute resolution and decision-making (U.S.A.). However, not even this has made it an exclusively governmental instrument.
Governmentally unregulated mediation procedures still take place when social groups take the independent decision to try out this instrument.
Can a "hybrid" of this kind be counted as an environmental policy instrument?
My answer is yes, for reasons I shall set out below. This explanation is not intended to be a further contribution to the discussion on classification of environmental policy instruments. That is an admirable exercise which is proving to be infinite and which many social science students have devoted time to.
Classifications in political analysis should not be an end in themselves (cf.
Mayntz 1980, 1983; Kaufmann/Rosewitz 1983). For political analyses they can be very helpful, since questions, hypotheses and theorems which have already been developed for and possibly empirically tested on existing classes/types can be applied to new instruments which have still to be researched - such as mediation. This facili-tates the design of theory-driven empirical studies.
First, I shall reiterate briefly what is meant by mediation. To do this I shall use definitions developed in the U.S.A. because the mediation procedure has been given most careful consideration there by social scientists (including economists and legal experts).
Gerald W. Cormick (1980) who pioneered the use of the mediation process in environment conflicts defines mediation as:
"A voluntary process in which those involved in a dispute jointly explore and rec-oncile their differences. The mediator has no authority to impose a settlement. His or her strength lies in the ability to assist the parties in resolving their own differ-ences. The mediated dispute is settled when the parties themselves reach what they consider to be a workable solution."
Another definition of mediation (MacDonnell 1988: 12 ff.) which includes definitions by other authors, states that:
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"Mediation introduces an outside neutral into the settlement process to act as a facilitator. Stulberg has provided the following explanation of mediation: "The mediation process can be characterised as follows: It is (1) a non-compulsory pro-cedure in which (2) an impartial, neutral party is invited or accepted by (3) parties to a dispute to help them (4) identify issues of mutual concern and (5) design solu-tions to these issues (6) which are acceptable to the parties." As with negotiation the only rules or structures that apply are those imposed by the parties themselves.
No objectively definitive norms or principles are assumed to control the outcome.
As Fuller suggests, it is the settlement itself that creates the norm. And, like nego-tiation, the settlement requires the mutual agreement of the parties."
Gerald W. Cormick (1980: 27) in his definition quoted above lists a series of criteria which are essential for a true mediation procedure:
"(1) The parties cannot be required to negotiate or cannot be unduly coerced to agree to any particular settlement of their differences. Indeed, unless they are will-ing to enter into the process with some intent to reach an accommodation of their differences, the mediation effort is not likely to be viable. (2) There will be a joint or face-to-face exploration of the issues, that is mediation must be seen as an adjunct to the negotiation process. (3) The mediator supports and facilitates the negotiation-mediation process by improving communications, serving as an inter-preter, arranging meetings, suggesting alternatives, helping to draft language, as-sisting in maintaining communication with those not "at the table", and so forth.
Whereas in labour-management disputes the mediator typically enters a dispute to revive lagging or severed negotiations, in environmental disputes the mediator usually serves a primary function in establishing a negotiating relationship. (4) Any agreement reached is the creature of the parties and must be deemed viable and acceptable by them. The mediator is not party to the agreement."
Seen in terms of negotiating, a central device in political theory and even more so in policy analysis, mediation can be defined as negotiation with the assistance of a trusted, independent and impartial third party whereby negotiation itself is defined (Iklel972: 117) as:
"a form of interaction through which individuals, organisations and governments explicitly try to arrange (or pretend to do so) a new combination of some of their common and conflicting interests."
From environmental policy studies we know that different scale negotiations take place in environmental policy processes on all levels, formal and informal, at programme development stage and implementation stage and that they are used in conjunction with virtually all environmental policy instruments (even the so-called "command and order" instruments). Unlike these established forms of negotiation which may be legally legitimated or, as often is the case, take place in the shadow of the law, mediation not only includes a third party as guardian of the procedure but negotiation here has to fulfil some basic prerequisites specific to the form of mediated negotiations. These include the following minimum conditions (cf. Cormick 1980: 28):
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1. There must be a recognition by all parties of the necessity of other parties participating in the process as co-equals; that means some level of partnership between the parties has to be achieved.
2. Each of the parties involved must have sufficient power or influence for sanction-ing other parties' abilities to take unilateral action.
3. Participants should be able to commit themselves and their constituencies to im-plementing agreements reached in the negotiation process.
4. Participants must have some sense of urgency with respect to settling the dispute.
It is one of the central responsibilities of the mediator to ensure that these basic condi-tions are fulfilled both before and during the procedure.
It is becoming clear that the mediator would have to possess almost superhuman qualities and skills in order to be able to fulfil the role assigned to him in the mediation procedure. Although the ideal person will seldom be found, practice has nevertheless shown that there are sufficient people with a natural leaning to the job who at least adequately fulfil the requirements. In the U.S.A. institutions grew up in the seventies which run systematic training schemes.7
I shall not go in detail into the methodological and practical aspects of designing and implementing mediation procedures nor into the skills of the mediator. The follow-ing brief list of criteria is intended to give a general idea:
• Since participation in mediation procedures is essentially voluntary, the mediator, unless he has been called in by one of the parties to the conflict into a set-up they themselves have created, must in advance inform and persuade potential partici-pants (Gross 1972: 269).8
• The exploration of the issues is carried out jointly by the participating parties being supported by the mediator.
• The mediator has no authority to impose a settlement on the participants.
• The mediator facilitates the negotiation process by assisting the parties in reaching a resolution acceptable to them.
• The mediator shares the responsibility for ensuring that any agreement reached represents a workable (feasible) solution. This means that he has an advisory function for participants who have little or no knowledge and practical experi-ence of the issue at hand (particularly highly complicated ones).
Cf. the institutions listed in the newsletter CONSENSUS, published by the Public Disputes Network, Cambridge, MA.
This task goes beyond what is normally thought of as "persuasion" in that the mediator is required to state very clearly the advantages and disadvantages of taking part or not taking part. Compare this to the follow-ing definition: "Persuasion takes place when A influences B to adopt a course of action without A's promis-ing or threatenpromis-ing any reward or punishment. It may take the form of example, expectation, proposals, in-formation, education, or propaganda" (Gross 1972: 269).
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So, is mediation, as defined above, a policy instrument and if it is to what existing categories can it be assigned?
Unlike the relatively recent mediation procedure the term policy instrument, well established in political science, has no precise definition. It is a frequently used yet extraordinarily diffuse term. Many political science dictionaries do not even list it separately (nor the term instrument) although they often bandy the word around in other listings (such as programme, implementation, decision-making, policy analysis) or use other words to circumscribe it (e.g. political means, methods, devices). It is therefore no wonder that elements of politics which are otherwise very distinct from one another are sometimes referred to as instruments: for instance, some refer to a po-litical programme as an instrument, whilst others would only call the elements or cer-tain elements of a programme instruments.
In German the semantic situation is even more hair-raising than in English, since the German word Politik carries the meanings polity - politics - policy - and it is im-possible to make a linguistic distinction. German political scientists have started to try to be more precise by circumscribing it and using political structures/institutions for polity, political process for politics, and political substance/political field of action for policy. Policy thus includes the substantial and procedural aspects of political pro-grammes designed to give shape to social relationships; this area includes what is seen as the state's responsibilities for dealing with problems and the strategies and instru-ments used for this purpose.
In everyday usage instruments are appliances and tools (Latin: instrumentum -equipment), i.e. means which are used to carry out a particular task. It would thus seem logical to place them in an aims/means context which is what policy researchers do, in that they define political instruments i.e. instruments to achieve a purpose or goal -which are needed for political action (to be more precise are used by the representa-tives of the system of government) as an important element in policy programmes, whereby the programme can be an analytical construction (ideal programme) of the policy researcher or an real programme.
Policy analysts see policies or policy programmes as a phase in the political process (policy-making, policy cycle), which according to Wildavsky, for example, contains the following elements: perception and selection of problems, articulation and definition of problems, formulation/design of programmes, conclusions/decision-mak-ing, implementation, feedback, evaluation of the effects of the programme, termination of policy-making.
Literature on the subject has no uniform definition for the term programme nor is a clear distinction always made between programmes, policies and instruments. A proposal influenced by implementation research for which there is a broad consensus, at least in the Federal Republic of Germany (Kaufmann/Rosewitz 1983: 34 ff.), uses the term "policy" for a perceived group of connected political measures which refer to a particular area of politics, i.e. an institutionalised sector of state policy-making, for
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example economic policy, financial policy, research policy, social policy.
The term programme, which is usually used in the U.S.A. to designate practical political initiatives, refers to the output from the programme design process and thus the input into the implementation process. A programme as a rule contains a number of inter-related decisions to enable a programme objective to be attained. Ideally it con-tains the following elements: the problems selected for treatment, the objectives the programme aims to achieve, assumptions about intended effects, and details of the in-stitutions entrusted with carrying out the programme (cf. W. Jann 1981: 49), The pol-icy instruments are as a rule also part of the implementation part of the programme;
they serve to implement and enforce the programme objectives.
The instruments chosen (and correspondingly the programmes to which they be-long) can be classified into specific types (cf. Kaufmann/Rosewitz 1983; Howlett 1991). For example, it is common to differentiate between hierarchical and authoritar-ian instruments (such as decrees and bans) and information and persuasion-oriented instruments, financial and procedural instruments. A procedural instrument (or proce-dural control) serves to create negotiating systems or to institutionalise rules which are intended to reconcile the interests of all parties affected by programmes.
In reality there are often combinations of different instruments within one pro-gramme. Policy instruments are means of (direct and indirect) political control to fulfil public responsibilities. As such they are also closely connected to the broad discussion on the capacities, capabilities, wills and skills of the governmental system to control other (social, economic etc.) systems.
Howlett (1991:2) provides the following comprehensive definition:
'"Policy instruments" is the generic term provided to encompass the myriad of techniques at the disposal of governments to implement their public policy objec-tives. Sometimes referred to as 'governing instruments' or 'tools of government', these techniques range in complexity and age, although most are well known to students and practitioners of public administration."9
Dahl and Lindblom had argued as early as 1953 that the number of alternative policy instruments was virtually infinite. They therefore drew up a classification based on the idea that most policy instruments lay between the poles of five different continua of government choice. In the first continuum, for example, the instruments are classified according to the degree of involvement of private and public companies/institutions.
The following table provides an overview.
According to C.W. Anderson, quoted by Howlett (1991: 2), for the theorist of policy instruments, "politics is always a matter of making choices from the possibilities offered by a given historical situation and cultural context. From this vantage point, the institutions and procedures of the state to shape the course of economy and society become the equipment provided by a society to its leaders for the solution of public problems.
Thev are the tools of the trade of statecraft."
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Table: Dahl and Lindblom's Continua of Instrument Choice Continuum 1. Nature of Instrument Ownership: Government to Private
Government+Part Government+Joint Govt-Private^ Private Continuum 2. Nature of Government Influence: Compulsion to Persuasion
Compulsion->Arbitration-*Mediation-*Conciliation-*Information Continuum 3. Nature of Government Control: Direct to Indirect
Nationalisation^Licensing-^Taxes/Subsidies^Macro-manipulation Continuum 4. Nature of Instrument Membership: Voluntary to Compulsory
Private Clubs^Compulsory Membership Organisations^Nation-State